Volmer v. Stagerman

Berry, J. In this case, the plaintiff’s counsel moves for a reargument, upon the ground that, in the opinion heretofore filed herein, this court fell into an error of fact as respected a certain blank note. Upon further examination of the complaint, we have come to the conclusion that the counsel is right, and that the court erred in holding that allegations of the complaint relating to the blank note were essential parts of the plaintiff’s cause of action, and in overlooking the fact that, irrespective of these allegations, the complaint, as will hereafter appear, states a good cause of action. The reargument is therefore allowed, and this requires us to consider several preliminary points urged by defendants, to which, in the disposition before made of the case, it was unnecessary •.to advert. This action, having been tried by the court below without :a jury, was dismissed on September 15, 1874. On November :23, 1874, a reargument was applied for by the plaintiff, and [243] ■denied. Subsequently the plaintiff made a motion for judgment notwithstanding the landings of the court, and, failing in ¡that, for leave to make and serve a case to be made a basis ■for a motion for a new trial. This motion was heard May 25, 1875, and on November 19, 1875, the court made an order •denying the motion for judgment, and granting leave to plaintiff to make and serve a case in sixty days. The sixty days expired January 18, 1876. On that day, plaintiff’s attorney •deposited the proposed ease in the post-office at the place where he resided, properly addressed to defendants’ attorney, with the postage paid. The document did not leave the post-office where it was mailed until January 19 th, on which day it reached the defendants’ attorney, and was by him returned, with notice that it was returned because it was not served within sixty days from November 19th. The proposed case having been brought before the district judge for settlement and allowance, the defendants’ counsel objected, upon the ground that it was not served within the time allowed by the ■court. The objection was overruled, and the proposed case, with an amendment showing an exception taken by defendants, was allowed as the settled case. The order of allowance was ■signed by the judge, but the case, as allowed and settled, was not signed by him, otherwise than by the signing the said order. The plaintiff thereupon made a motion for a new trial in the action, upon the ground, first, “that the verdict and decision therein was not justified by the evidence and is contrary to law, and, second, for errors in law occurring at the trial, and ■excepted to by plaintiffs.” In his notice of motion for a new trial, the plaintiff’s attorney gives notice that, upon the hearing, he will read and refer to the settled case, the pleadings, and all the records, papers and proceedings in the case. It does not appear that any objection was made by the defendants to the use of the settled case, (such as it was,) upon the hearing of the motion. The court granted a new trial, reciting, in the order therefor, that it was granted “ after an exam [244] ination of the settled case, and all the papers and proceedings-in the case, and after hearing” tho respective attorneys of the plaintiff and defendants. The defendants contend that the order denying a new trial' was wrong, because the denial of the motion for a reargument was a final disposition of the case by the court below;, that it was equivalent to a denial of a motion for a new trial made on the minutes of the court. Without reference to other answers to this position, it is sufficient that, though it does not appear upon what ground the motion for reargment was denied, it might very properly have been denied upon the ground that a motion for a reargument is an unheard of thing in district courts, and ought not to be tolerated, since there are other ways provided by law and sanctioned by common practice, for the re-examination and revisal of the actions-of such courts. It is further argued that the order granting a new trial was wrong, because, “the motion for judgment notwithstanding the decision having been denied, the matter was res acljudicata.” As to this it is enough to say that the motion was in the alternative — that is, for judgment, or for leave to make a ease — and for aught that appears, the court (as would have been entirely proper) may have denied the former branch of the motion, for the reason that it granted the latter. It is further objected that the motion for leave to make a-case was made too late. It was not made within the time prescribed in Gen. St. c. 66, § 237; but the effect of the leave given to make it after such prescribed time (no judgment having been entered) was to grant further time to make it; and this is authorized by Gen. St. c. 66, § 105. It is also said that the proposed case was not served within sixty days allowed by the order of leave. If it was not, the failure to-make timely service was cured by the actual settlement and allowance of the case by the court. This was equivalent to an allowance of service after time, or to an enlargement of the time of' service, under Gen. St. c. 66, § 105. [245] It is further urged that no “ease” was allowed and signed 'by the trial judge, as required by Gen. St. c. 66, § 237. The return embraces what purports to be a copy of a proposed •case, containing all the testimony received on the trial. It also embraces a copy of an order signed by the judge of the •court below, in these words, viz.: “It is further ordered that copies of the complaint, answer and order of the court dismissing said action be attached to said proposed case, and made a part thereof, and that said proposed case so amended be allowed and staud as the settled case in said action.” The return further shows that, upon some document treated as a settled case, a motion for a new trial was heard and granted by the court below. Upon these facts, we are of opinion that, .as nothing appears to the contrary, it is tó be presumed in favor of the regularity of the proceedings in the court below that the order signed by the judge is attached to the proposed case, so that the two are parts of one and the same document. If this is so, the allowance expressed in the order, and the judge’s signature thereto, are a sufficient allowance and signing of the case. McCormick v. Miller, 19 Minn. 443, and Thompson v. Myrick, 24 Minn. 4, are authorities that a dismissal of an action for insufficiency of evidence is a “decision” of the same, within the meaning of the statute which allows .a motion for a new trial to be made upon the ground that the decision is not justified by the evidence, and is contrary “to law. To the point that the order of dismissal could not be .l’e-examined because it had not been excepted to, it is an answer that this case was one in which no exception was .requisite, because there was no opportunity to take one; for an exception is an objection taken at the trial, (Gen. St. e. 66, § 233,) and the. order of dismissal in this case was not .granted at the trial, but after it was concluded, and the court had taken the case under advisement. As to the only remaining objection which we care to notice, Searles v. Thomp [246] son, 18 Minn. 316, in effect decides that, upon the dismissal' of an action, a motion for a new trial may properly be made-upon a “case settled.” We come now to the merits of this appeal. So far as important to our present purpose, the substance of the complaint is this : It alleges that the defendants are, and during all the time mentioned in the complaint were, husband and wife; that on January 10, 1870, the plaintiff recovered a judgment against defendant August, for $398.78; that on July 16,1870, the judgment being in full force, and no part of it having been paid, plaintiff and said August entered into an agreement whereby the latter, in consideration that the plaintiff would satisfy the judgment, agreed to pay him $400 in two years and five months from said July 16th, with 12 per cent, annual interest, and also agreed to execute and deliver to said plaintiff his promissory note of that date, for $400, payable according to-the terms of the agreement, and to secure the payment of said note by a mortgage of eighty acres of land, described in the complaint ; that on the said 16th day of July, in pursuance of the agreement, the defendants (August and his wdfe) executed and delivered to plaintiff their mortgage of said land, which was duly recorded, but that, through neglect, inadvertence or fraud, said August failed to execute the note agreed upon, which was made out at the time ready for his signature; that, under the belief that the mortgage and note had both been executed pursuant to agreement, the plaintiff, in fulfilment thereof upon his part, satisfied the judgment of record; that upon discovering that the note had not been signed, the plaintiff presented it to said August, requesting him to sign it, which he refused and neglected to do; and that, though at divers times on or about and since December 20,1872, the plaintiff has demanded of said August payment of said sum of $400, and the interest thereon, said August has wholly neglected and refused to pay the same, or any part thereof. So far as these allegations of the complaint are put in issue by the answer, there is evidence247 in the ease to support all of them, so far as they are substantially essential to.a cause of action. There is, as we held in our former opinion in this case, a failure of evidence to establish in all particulars the allegations of the complaint in respect to what is called “the blank note.” But, as before stated, we were in error in holding that such particulars were essential to the plaintiff’s cause of action. As respects the matter of the note, it would be sufficient, both as regards pleading and proof, that there was an agreement to execute one; that, through neglect, inadvertence or fraud, it failed to be executed; that, upon proper request, the defendant August neglected or refused to execute it. Upon establishing such a state of facts, in addition to the other material allegations of the complaint, we are of opinio 1 that the plaintiff would be entitled to relief in the way of a foreclosure of his mortgage; and without any specific performance of the agreement to execute the note. The counsel for the defendants has made several points with reference to the merits of the case, but, without having overlooked them, we do not deem it necessary to advert to them, except so far as their consideration is involved in what we have already said. We are of opinion that, upon a re-examination of the pleadings and evidence, the court below was warranted in granting a new trial, upon the ground that its dismissal of the action was not justified by the evidence, and was contrary to law. The order granting a new trial is accordingly affirmed.